Austad v. Risley, 83-3933

• Citation: 739 F.2d 428
• Decision Date: 31 July 1984
• Docket Number: No. 83-3933,83-3933
• Parties: Gene Andrew AUSTAD, Petitioner-Appellant, v. Henry RISLEY and Thomas Sellars, Respondents-Appellees, and Attorney General Mike Greely, Additional Respondent and Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 428

739 F.2d 428

Gene Andrew AUSTAD, Petitioner-Appellant, v. Henry RISLEY and Thomas Sellars, Respondents-Appellees and Attorney General Mike Greely, Additional Respondent and Appellee.

No. 83-3933.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 9, 1984.

Decided July 31, 1984.

Curtis G. Thompson, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for petitioner-appellant.

Margaret M. Joyce Johnson, Asst. Atty. Gen., Helena, Mont., for respondents-appellees.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, GOODWIN and NORRIS, Circuit Judges.

GOODWIN, Circuit Judge.

Gene Andrew Austad, who is serving a life sentence plus consecutive terms of years in Montana upon multiple felony convictions, petitioned for habeas corpus relief claiming that the state had convicted him in violation of the federal Constitution. He asserted that because of his mental condition at the time of trial he was denied due process and that the pretrial publicity created an environment in which the failure of the state court to change the venue amounted to a denial of a fair trial. He asserted a number of other alleged constitutional deficiencies in the state proceedings, all of which were carefully reviewed by the district court. Austad appeals only the issues of denial of a change of venue and fitness to stand trial.

The initial question of Austad's mental fitness to stand trial was essentially one of fact. Head injuries sustained by Austad as a result of a high speed police chase left him with residual brain damage. He claimed also to be suffering from amnesia and pain and having difficulty in communicating with his counsel. A comprehensive pretrial hearing was conducted by the state court on the fitness issue. The court compiled a voluminous record of testimony including that of an internist, a neurologist, a clinical psychologist, and a psychiatrist. Austad, his mother and one of his lawyers also testified. The state court found him fit to stand trial according to the federal standards set out in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), and that finding was affirmed by the Montana Supreme Court in State v. Austad, Mont., 641 P.2d 1373, 1379 (1982).

Giving the finding on mental fitness the deference due under Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), the district court found no denial of due process. We agree.

Turning to the denial of the motion for a change of venue, it is noteworthy that the rape, robbery, burglary, and homicide attributed to Austad all took place on April 21, 1978, and that because of his injuries and various pretrial delays he was not tried until nearly two years later. He contends, nevertheless, that the pervasive news coverage at the time of the crimes of which he was charged made it impossible for him to receive a fair trial in Great Falls, Montana two years later. The district court considered this constitutional challenge in light of the state court record as a whole and found that Austad had not been denied a trial by twelve impartial jurors. The district court noted that the state trial judge had granted Austad individual voir dire examination and on its own motion had excused any juror who expressed reservations about his or her ability to favor the accused with the presumption of innocence. The voir dire took up some 2,000 pages of transcript and 21 trial days. Counsel and the court questioned 93 prospective jurors and every juror chosen to sit as a trial juror or as an alternate was passed for cause.

The only act the district judge did not perform which Austad now says entitles him to a new habeas corpus hearing was personally to review tapes of radio and television newscasts and some 92 newspaper clippings. Austad contends that our recent decision in Harris v. Pulley, 692 F.2d 1189 (9th Cir.1982), rev'd --- U.S. ----, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), requires an automatic reversal and remand so the district judge can go through the motions of examining these publications in order to assure himself that the news coverage had not made it impossible to obtain an impartial jury in Great Falls during January, February and March of 1980. See also Bashor v. Risley, 730 F.2d 1228 (9th Cir.1984).

The recent decision of the Supreme Court in Patton v. Yount, --- U.S. ----, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) makes it unnecessary to reconsider whether, as appellant contends, Harris v. Pulley creates a per se rule requiring another habeas hearing in this case. In Patton, the pretrial publicity climate was very similar to that alleged in the present case. Indeed, except for the fact that in Patton there were two trials in four years, whereas in the present case there was one trial after a delay of nearly two years, most of facts relevant to the change of venue question are indistinguishable. The Supreme Court held that the state trial court's findings of fact on the prejudicial effect of the pretrial publicity were presumptively correct. In our case, both the state trial court and the state Supreme Court addressed the question and found that no juror biased by pretrial publicity had sat on the case. The district judge indicated he had reviewed the entire state court record, failing only to recite that he had read all the clippings. Under Patton, he had no duty to read the clippings. The appellant offered no factual evidence in the district court to overcome the presumption that the state court's findings of an absence of juror bias were correct.

Other points presented before the trial court were not renewed on appeal.

Affirmed.

NORRIS, Circuit Judge, dissenting.

I respectfully dissent. The majority today affirms a district court's denial of a petition for habeas corpus despite the fact that no federal court has reviewed the prejudicial pretrial publicity exhibits contained in the state court record. ¹ It does so on the authority of the Supreme Court's recent decision in Patton v. Yount, --- U.S. ----, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Yet, the Court's opinion in Patton makes it abundantly clear that every federal court which dealt with the case--every tier of the federal judiciary, including the Supreme Court--carefully reviewed the relevant portions of the state court record, including all pretrial publicity exhibits. In the district court, a hearing was held before a magistrate, id. at ----, 104 S.Ct. at 2887, and the district court made an "independent review of the record," Yount v. Patton, 537 F.Supp. 873, 876 (W.D.Pa.1982). The Third Circuit "independently examined the nature of the publicity surrounding the second trial, the testimony at voir dire of the venire as a whole, and the voir dire testimony of the jurors eventually seated." Patton, --- U.S. at ----, 104 S.Ct. at 2887. Finally, the Supreme Court made a thorough review of the state court record, paying especially careful attention to the pretrial publicity exhibits and the voir dire. Id. at ---- - ----, 104 S.Ct. at 2889-2890.

Nonetheless, the majority contends that Patton requires that we affirm. It founds this contention on two arguments. Neither is persuasive.

First, the majority argues that since the Supreme Court held in Patton that a state trial court's findings concerning the prejudicial effect of pretrial publicity are presumptively correct and since appellant offered no factual evidence in the district court to overcome this presumption, the district court "had no duty to read the [publicity] clippings." Supra at 429.

The majority's reasoning is faulty. It is true that the Supreme Court's decision in Patton requires that in a habeas corpus proceeding a district court show deference to a state court's findings concerning the impartiality of a jury. "[T]he trial court's finding of impartiality [may] be...